GHULAM SHABBIR Versus STATE
This matter involves two petitions arising from a judgment of the Lahore High Court upholding the conviction of the petitioner under Section 302 of the Pakistan Penal Code for murder, resulting in a sentence of life imprisonment and fine. The core legal question revolves around the reliability of the ocular testimony given by inimical witnesses and the voluntariness and credibility of the deceased's dying declaration recorded in the presence of relatives amidst potential identity disputes. The Supreme Court granted leave to appeal in both the convict's petition and the complainant's petition to thoroughly re-appraise the entire evidence on record. The key principle laid down is that where serious questions are raised regarding the corroboration of interested witnesses and the trustworthiness of a dying declaration, the apex court will grant leave to re-examine the evidence.
- Can a conviction for murder under Section 302 of the Pakistan Penal Code be sustained solely on the basis of ocular testimony from witnesses who are admittedly inimical to the accused without independent corroboration?
- Whether a dying declaration recorded by a police officer in the presence of relatives, where a dispute regarding the identity of the assailant existed, can be considered voluntary and reliable?
- Under what circumstances will the Supreme Court grant leave to appeal to re-appraise evidence in a criminal case concurrent findings of lower courts?
- Section 302, Pakistan Penal Code
- Section 342, Code of Criminal Procedure
ORDER
ALI HUSSAIN QAZILBASH, J.-- These are two petitions one by Ghulam Shabbir convict against the State and the other by Muhammad Amir, complainant, against Ghulam Shabbir convict, against the judgment of a Division Bench of the Lahore High Court, dated 12-6-1983.
2. On 8-5-1980 at about 1-00 p. m. Sher Baz was near the 'Bus Stand' Khoshab followed by his companions namely Muhammad Feroze and Muhammad Khan, when Ghulam Shabbir armed with a pistol, suddenly emerged from behind the Trucks standing there. He raised a Lalkara which prompted Sher Baz to turn his face, when he was fired at the back of his chest affectively by Ghulam Shabbir as a result of which he fell on the ground. His companions tried to apprehend the assailant but he managed to escape. Sher Baz was taken to the hospital where Muhammad Salim Khan Niazi S.I. recorded the statement of Sher Baz with the permission of the Medical Officer which is Ex. P.C. /1. Sher Baz remained under treatment in the hospital for five days when on 13-5-1980 he succumbed to his injury and his earlier statement was treated as dying declaration.
3. The case was investigated and Ghulam Shabbir was arrested on 4-7-1980 who led the police to the recovery of pistol Ex.P.6 alongwith a crime empty Ex.P.7 lying in its chamber which was taken into possession. After the completion of the investigation, Ghulam Shabbir, petitioner, was put to trial where the prosecution in support of its case, produced Muhammad Feroze P.W.7, the first cousin of the deceased and Muhammad Khan P.W.8 a relation of the deceased as eye-witnesses. The prosecution also relied on the dying declaration. Ghulam Shabbir, in his statement under section 342, Cr.P.C. had denied the occurrence and disowned the recovery of the pistol. He deposed that he was involved in the murder case on account of enmity. The trial Court, vide its judgment, dated 1-11-1982, after recording the necessary evidence convicted Ghulam Shabbir under section 302, P.P.C. and sentenced him to life imprisonment and a fine of Rs.20,000 or in default to undergo two years' R:I. It was directed that out of the fine Rs.16,000 be paid as compensation to the heirs of the deceased. The appeal filed by Ghulam Shabbir in the High Court was dismissed on 12-6-1983 and so was the Criminal Revision No. 769 of 1982.
4. The above judgment has now been challenged through the present two petitions, which are being disposed of by this order.
5. We have heard the learned counsel for the parties and have gone through the judgments of the Courts below and some of the evidence available on the record. The learned counsel appearing in support of the petition vehemently criticised the findings of the Courts below. He submitted inter alia, that the prosecution has not at all been able to establish its case against Ghulam Shabbir petitioner, because the two eye-witnesses, who appeared in support of the case of the prosecution were admittedly inimical towards Ghulam Shabbir petitioner and the ocular version furnished by them has not at all be corroborated by other independent evidence. He also submitted that it was the prosecution's own case that the dying declaration was recorded in the hospital by the police officer when the relatives of the deceased were around him, therefore, in all probabilities, it was a tutored statement; and further that Muhammad Salim Khan Niazi P. W. 12 has admitted in the Court that at the time of recording the dying declaration there was a dispute as to the identity of the assailant between the deceased and his relations. Since the dying declaration he submitted was not voluntary and a suspicious document it should not have been relied upon at all by the Courts below.
6. After hearing the arguments of the learned counsel for the petitioner in the light of the record, we are of the view that it is a fit case in which leave should be granted to re-appraise the entire evidence. Leave is accordingly granted.
7. Since leave has been granted in Criminal Petition No. 256 of 1983, we also grant leave in Criminal Petition No. 621 of 1983.
S.Q./G-51/S Leave granted.